Citation Nr: 21030809 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-00 358A DATE: May 19, 2021 ORDER As new and material evidence has not been submitted regarding the claim for service connection for chronic myelogenous leukemia (CML), the Veteran's claim is not reopened, and the appeal is denied. FINDINGS OF FACT 1. By a June 2012 Regional Office (RO) determination, the Veteran's claim for service connection for CML was denied due to the following: (a) the evidence did not show an event, disease, or injury in service, (b) the Veteran's condition was not one of the chronic diseases that VA presumes is related to military service, (c) the evidence did not show that his disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection, and (d) it was not found that he participated in a radiation risk activity while in service. 2. Evidence received since the June 2012 rating determination is cumulative and redundant, and does not raise a reasonable possibility of substantiating a claim for service connection for CML. CONCLUSIONS OF LAW 1. The June 2012 rating determination denying the Veteran's claim for service connection for CML is final. See 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for CML has not been submitted. See 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to April 1975. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Additionally, the Veteran has not alleged any deficiency with his May 2018 hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Board notes that, although additional evidence was received after the November 2017 statement of the case (SOC), the evidence is not pertinent to the claim, as it essentially duplicates evidence already associated with the file, does not contain any relevant information with respect to this particular claim, or does not require waiver of initial Agency of Original Jurisdiction (AOJ) consideration, as the Veteran's substantive appeal was received after February 2, 2013. As such, the Board may proceed to adjudicate the claim as done below without prejudice to the Veteran. New and Material Evidence The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The issue for resolution before the Board, therefore, is whether new and material evidence has been submitted sufficient to reopen the Veteran's previously denied claim for entitlement to service connection for CML, regardless of how the RO characterized the issue. In this case, the Veteran's claim for service connection for CML was denied by the RO in a June 28, 2012, letter. The Veteran did not file a Notice of Disagreement within one year of that rating decision or submit any additional evidence related to this claim that is new and material within a year of this rating decision. 38 C.F.R. § 3.156(b), 38 C.F.R. § § 20.1103. As such, the June 2012 denial became final. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). The Veteran's claim for service connection for CML was denied in the June 2012 letter for the following reasons: (1) the evidence did not show an event, disease, or injury in service, (2) the Veteran's condition was not one of the chronic diseases that VA presumes is related to military service, (3) the evidence did not show that his disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection, and (4) it was not found that he participated in a radiation risk activity while in service. At the time of this denial, the Veteran's service treatment records, post-service medical records, and statements were considered. The new evidence submitted since this denial consists primarily of statements and hearing testimony from the Veteran, a statement from the Veteran's wife, and post-service medical records, to include an October 2015 VA Disability Benefits Questionnaire (DBQ) and a December 2015 VA opinion. With regard to the November 2019 statement of the Veteran's wife, the Board notes that this statement addressed symptoms related to the Veteran's service-connected depressive disorder, not his CML. As such, the Board does not find that this statement is new and material evidence for the purpose of reopening this claim. With regard to the Veteran's lay statements and hearing testimony, the Board notes that the Veteran attributes his CML to his conceded in-service exposure to Agent Orange. As such, the Board finds that the Veteran's statements and testimony essentially offered a new theory of entitlement, in that, prior to the June 2012 determination, the Veteran had previously linked his CML to alleged in-service exposure to radiation. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). While a new theory of entitlement, by itself, cannot be the basis to reopen a claim, if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, however, the Veteran has submitted no such evidence supporting his new theory of entitlement regarding Agent Orange exposure and CML. Notably, the Veteran does not have medical training or expertise and, thus, is not competent to link his CML to in-service Agent Orange exposure. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his statements and testimony are not deemed to be new and material evidence for the purpose of reopening this claim. The Board has considered the newly submitted post-service medical records, to include the 2015 VA examination report and opinion. While these records continue to note a diagnosis of CML, they contain no evidence linking the Veteran's CML in any way to his military service. In fact, they contain negative etiology opinions. Therefore, these newly submitted records do not relate to an unestablished fact necessary to substantiate the claim and are not deemed to be new and material evidence for the purpose of reopening this claim. Moreover, the Board notes that the Veteran testified at the May 2018 hearing that he has spoken to doctors and his wife, who is a nurse, who have indicated that they believe that his CML could be related to his in-service Agent Orange exposure. However, the Board notes that "hearsay medical evidence," cannot constitute actual medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69 (1995). Therefore, these assertions are not probative, and they are not deemed to be new and material evidence for the purpose of reopening this claim. Again, his wife's 2019 statement dealt solely with his mental health issues, and contained no statements concerning CML. Although the Board is sympathetic to the Veteran's health difficulties, no new and material evidence has been received sufficient to reopen his claim for service connection for CML. Until the Veteran meets the threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.